Clark v. Moffett

• Decision Date: 28 January 1933
• Docket Number: 30826.
• Citation: 18 P.2d 555,136 Kan. 711
• Parties: CLARK et al. v. MOFFETT et al. (COMMERCE TRUST CO. et al., Interveners. [*]
• Court: Kansas Supreme Court

18 P.2d 555

136 Kan. 711

CLARK et al. v. MOFFETT et al. (COMMERCE TRUST CO. et al., Interveners. ^[*]

No. 30826.

Supreme Court of Kansas

January 28, 1933

Syllabus by the Court.

Evidence sustained finding partnership was indebted to member thereof.

Where issue existed whether partnership was indebted to partner receiving in evidence, as informative, but not conclusive summary made by accountants from partnership books, held not error.

Evidence sustained finding members of partnership agreed to pay interest on money borrowed from partner.

Where partnership was indebted to partner, fact that interest accrued, but not paid, was omitted from partnership's federal income tax return, held not to abrogate agreement to pay interest.

Failure to file claim against estate within time prescribed by nonclaim statute of another state does not preclude claimant from establishing claim in appropriate action in Kansas.

Neither statute of nonclaim nor statute of limitation is available to one of partners to bar appropriate accounting of partnership before amount due, as between partners, is ascertained.

In an action involving a partnership accounting, the record is examined, and it is held: (1) The evidence sustains findings that the partnership was indebted to one of its members; (2) it was not error for the court to receive in evidence, as informative, but not conclusive, a summary made by accountants from the partnership books; (3) the evidence sustains the finding that the members of the partnership had agreed to pay interest on moneys belonging to a member of the firm, but used by the partnership; (4) the fact that in making out personal income tax returns for the federal government interest accrued but not paid was omitted from the statement of partnership income did not abrogate the agreement between the partners to pay interest; (5) neither the statute of nonclaim nor the statute of limitations barred the accounting.

Appeal from District Court, Harper County; George L. Hay, Judge.

Action by Thomas S. Moffett and others. against Helen Moffett and others, in which the Commerce Trust Company, executor de bonis non of the will of John Moffett, deceased, and others intervened. During the pendency of the action, the named plaintiff died, and Grace Torrance Clark, administratrix with will annexed of the Estate of Thomas S. Moffett, deceased was substituted in his stead. From the judgment, plaintiffs appeal.

A. E Watson and Martin J. O'Donnell, both of Kansas City, Mo., and E. C. Wilcox, of Anthony, for appellants.

Orlin A. Weede, of Kansas City, Mo., and Guy O. Neal, of Anthony, for appellee Helen Moffett.

B. C. Howard, of Kansas City, Mo., for appellee Commerce Trust Co.

R. O. Robbins, of Sedan, pro se.

Glen A. Wisdom, of Kansas City, Mo., for appellee Ethel Zombro.

H. A. Wilkinson, James R. Eagleton, and S. A. Horton, all of Oklahoma City, Okl., for appellees Renwick J. and Joseph W. Moffett.

HARVEY J.

The partnership of Moffett Bros., composed of John Moffett and Thomas S. Moffett, was dissolved by the death of John Moffett August 23, 1927. John Moffett left a will, which, after making specific bequests, left the residue of his property to certain relatives. His widow elected to take under the law. The partnership owned a large amount of real property situated in several counties in Kansas and in Missouri. On August 15, 1929, the general debts of the partnership having been paid, Thomas S. Moffett brought this action to partition the Kansas land belonging to the partnership. The defendants named were the widow of John Moffett and the devisees under his will. John and Thomas S. Moffett were also in partnership with their brothers, Renwick J. Moffett and Joseph W. Moffett, under the firm name of Moffett Bros. Cattle, Land & Lumber Company. The business of this partnership was conducted principally in Oklahoma. Renwick J. and Joseph W. Moffett were beneficiaries under the will of John Moffett, and were made parties defendant in the partition action. Helen Moffett, the widow of John Moffett, answered in the partition action, conceding that the lands should be partitioned, but alleged that the partnership of Moffett Bros. was indebted to John Moffett individually, that Thomas S. Moffett individually was indebted to the partnership of Moffett Bros., and that the Moffett Bros. Cattle, Land & Lumber Company was indebted to the partnership of Moffett Bros. These matters were set up in a cross-petition, and she asked that an accounting be had of such indebtedness, and the sums, if any, found to be due taken into consideration in determining the shares or interest of the respective parties in the land to be partitioned. The Commerce Trust Company, in its dual capacity of executor de bonis non of the will and estate of John Moffett, and as administrator of the partnership estate of Moffett Bros., by leave of court, intervened in the action, and it and other defendants sought an accounting and partition. The action came to this court on the pleadings (Moffett v. Moffett, 131 Kan. 582, 292 P. 947, 77 A.L.R. 294), where it was determined that the accounting prayed for was proper.

When the action went back to the trial court, broadly speaking, the only controversy between the parties was with respect to the accounting. The will of John Moffett had been construed as it affected some of the beneficiaries both by this court, Moffett v. Moffett, 131 Kan. 546, 292 P. 942, and by the Supreme Court of Missouri, Zombro v. Moffett, 44 S.W.2d 149. There was no longer any controversy among the parties as to the share or interest which each of them should receive in the land to be partitioned except as the same might be modified by the accounting.

Broadly speaking, there were but three things to be determined in the accounting: First, was Moffett Bros. indebted to John Moffett individually at the time of his death, and, if so, in what sum? Second, was Thomas S. Moffett indebted to the partnership of Moffett Bros., and, if so, in what sum? And, third, was the Moffett Bros. Cattle, Land & Lumber Company indebted to Moffett Bros., and, if so, in what sum?

After hearing the evidence, the trial court made exhaustive findings of fact, and found, on an accounting to the date of October 31, 1931, that the estate of Moffett Bros. was indebted to the estate of John Moffett in the sum of $143,829.96; that the estate of Thomas S. Moffett (he having died since the action was brought) was indebted to the estate of Moffett Bros. in the sum of $27,399.25, and that Moffett Bros. Cattle, Land & Lumber Company was indebted to the estate of Moffett Bros. in the sum of $101,228.06. The court rendered judgment in accordance with these findings. The present appeal is by plaintiffs from this judgment and the findings on which it was based. On this appeal, broadly speaking, no question is raised as to the amount found by the trial court to be due from Moffett Bros. Cattle, Land & Lumber Company to the estate of Moffett Bros. Neither is there any question raised as to the amount found by the trial court to be due from the estate of Thomas S. Moffett to the estate of Moffett Bros. The only major question over which any controversy is presented by this appeal relates to the correctness of the trial court's finding that the partnership of Moffett Bros. was indebted to the estate of John Moffett in the sum of $143,829.96. With respect to that, broadly speaking, appellants make two contentions: First, that the evidence does not support the findings of the trial court, but, coupled with this, is the contention that the court received incompeent evidence on that point; and, second, that the court erred in computing and including interest on the amount of the indebtedness of Moffett Bros. to John Moffett individually.

This controversy, so comparatively simple in its broader aspects, as above outlined, has been complicated by the manner in which the litigation has been conducted by injecting into it a number of questions relating to practice or procedure and technical questions, many of which have little or no substantial merit, with the result that the parties have presented to this court for its analysis and its consideration 1,740 pages of printed abstracts and briefs. Notwithstanding the extraordinary and wholly unnecessary bulk of the matter presented, we have endeavored to go through it carefully and painstakingly, and have done so as fully as our time would permit, and will treat and dispose of all the questions presented that have any semblance of merit.

We shall take up, first, the principal questions presented by this appeal: Does the evidence sustain the finding that Moffett Bros. was indebted to John Moffett? On this point the evidence may be summarized as follows: John Moffett and Thomas S. Moffett resided at Kansas City, Mo. They were equal partners in the firm of Moffett Bros. When this partnership was formed is not definitely shown, but it had existed a long time, perhaps thirty years or more, when it was dissolved by the death of John Moffett. It was engaged in the ranching and live stock business, and owned and operated a number of farms and ranches, and had offices in the Livestock Exchange Building at Kansas City. John Moffett spent most of his time at the office, where they had bookkeepers and other clerical help. Thomas S. Moffett spent most of his time looking after the farms and ranches and the live stock thereon, going back and forth from the office to the various ranches. Each of them had property owned individually. Both of them were members of the partnership firm of Moffett Bros. Cattle, Land & Lumber Company, which was engaged in the live stock, land and lumber business in Oklahoma, the field work being looked after by the Oklahoma ...